Winkler Dispute Resolution

Certified Specialist in Civil Litigation by the Law Society of Upper Canada

Privacy laws

Howard Winkler’s media roundup

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Toronto lawyer and mediator Howard Winkler is frequently called upon by the media as a trusted source for their news stories, particularly for his focus on defamation and privacy issues.

See the complete list below:

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Toronto lawyer and mediator Howard Winkler tells the Toronto Star he has brought a motion to dismiss a defamation case against his client, Ontario’s former PC leader, under a section of the Courts of Justice Act aimed at limiting “strategic lawsuits against public participation” or SLAPP actions.

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Toronto lawyer and mediator Howard Winkler tells QP Briefing that a threat to sue someone during an election campaign is likely “fairly empty,” given litigation is expensive and time-consuming and “any vindication that then comes with a favourable judgment, again absent actual harm, is often of little real benefit.”

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Legal action is almost guaranteed after a city councillor and a former colleague filed a court application known as a Norwich Order, which requests the names, contact information, messages and contracts between a web developer and clients who hired or directed them to create negative websites, Toronto lawyer and mediator Howard Winkler tells the London Free Press.

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Toronto lawyer and mediator Howard Winkler tells the Globe & Mail that the statements made by a high-profile investor against his client, a private equity manager, were “on their face, outrageous, false and defamatory” and “clearly indefensible.”

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In his recent column for Law Times, Toronto lawyer and mediator Howard Winkler says the end to abusive non­-disparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.

Toronto lawyer and mediator Howard Winkler tells La Presse the Liberal government’s endorsement of a contentious article in the new free trade agreement between the U.S., Mexico and Canada will give immunity to social media companies in Canadian courts even if they knowingly disseminate fake, false and defamatory statements of their members.

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By signing on to the United States-Mexico-Canada Agreement (USMCA), the Liberal government agreed to significantly alter the existing common law of defamation, Toronto lawyer and mediator Howard Winkler writes in Law Times.

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A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

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Toronto lawyer and mediator Howard Winkler tells Global’s 640 Torontohe’s concerned the Prime Minister’s Office (PMO) may have overstepped its authority by requesting Twitter delete what it said was a fake account impersonating Environment Minister Catherine McKenna.

Everyone loses in cautionary New Brunswick defamation case

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A recent New Brunswick decision is a cautionary tale for all involved in defamation claims, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The case involved a gallery owner who won $3,000 in damages and costs from an artist who badmouthed her online during a dispute over payment.

But Winkler, principal and founder of Winkler Dispute Resolution, says the gallery owner’s victory rang somewhat hollow, considering the small recovery, as well as the time and cost of bringing the action, seeking between $25,000 and $50,000 in general damages alone.

“This decision is a cautionary tale in several respects,” Winkler says. “Not only should people be careful about what they post online, but they must also be careful when deciding what to sue someone over.”

According to the court ruling in the case, the events in question date back to late 2013, when one of the artist’s pieces was sold by the gallery for $4,000. About a year after the sale, when the gallery owner told the court she was suffering from business and personal problems, the artist was still waiting for his full share. He then took to Facebook to vent his frustrations in a post, part of which accused the gallery owner of “theft.”

Separately, the artist won around $750 from the gallery owner, including costs, in a small claims action he launched over the underlying payment dispute.

According to Winkler, the defamation case came down to the artist’s use of the word “theft,” which the judge invoked in dismissing his defences of both justification and fair comment.

“Everyone is entitled to comment fairly on matters of public interest and such comments are protected against claims of defamation. That does not include a reference to someone as engaging in a criminal activity such as theft,” wrote the judge, who noted the distinction between a person who steals and someone who avoids paying debts.

Winkler, who was not involved in the matter and comments generally, says the case was a close one, and that the result could easily have gone the other way.

“The word ‘theft’ suggested an element of criminality to this judge, but in the context of the overall post, another judge or reasonable reader could easily have come to the conclusion that the meaning was not defamatory and that the use of the word ‘theft’ meant nothing more than that the gallery owner was keeping money that properly belonged to the artist,” he says. “In matters like this, the result is often a bit of a crapshoot.”

In addition, Winkler says the case demonstrates the inadequacy of the judicial system when it comes to dealing with matters of reputation.

“The impact of defamatory posts, particularly online, is immediate, but here, it was not resolved until many years later,” he says. “The passage of time was so great, that both parties had probably moved on with their lives.”

If anything, Winkler notes the court case and subsequent news coverage merely rehashed a dispute that makes neither side look good.

“For the gallery owner, this was a victory with respect to the judgment, but it’s possible it did more harm than good by reminding everyone about the fact she had broken a promise to pay an artist,” he says.

The $450 the gallery owner won in costs is also likely to pale into significance with her legal fees, even though the action proceeded under New Brunswick’s simplified procedure, says Winkler, noting that both sides were represented by counsel at trial.

“From a financial perspective, everyone lost, especially when you put it in the context of a sculpture that was valued at $4,000,” he says.

Supreme Court decision not such a dark day for journalists: Winkler

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Free press advocates are overreacting to a Supreme Court of Canada decision that forced a journalist to hand over materials to police, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

All nine judges upheld a previous judgment ordering a Vice Media Canada reporter to turn over messages he exchanged with a Canadian citizen allegedly involved with ISIS, prompting a number of commentaries, including by the Canadian Association of Journalists (CAJ) which called it a dark day for journalists in the country.

“This ruling is a serious setback for press freedom in Canada. It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” the CAJ said in a statement to media.

But Winkler, principal and founder of Winkler Dispute Resolution, says the sentiment reflects an “exaggeration” of the ruling’s impact.

“In my opinion, the decision represents an appropriate balancing of the various interests at stake in the matter,” Winkler says. “I don’t think it’s a dark day for press freedom for a number of reasons.”

First, he says the judges emphasized in their decision that the case arose before the passage of the new federal Journalistic Sources Protection Act, which created a new framework for search warrants and production orders involving the media, and only came into force in October 2017.

“In terms of precedential value, it’s going to be limited, given the enaction of new legislation that provides specific protection for journalistic sources,” Winkler says.

In addition, the journalist’s source in the Supreme Court case was not one the reporter had offered confidentiality. In fact, the court found the man was keen to make contact with members of the media in order to broadcast his extremist views.

“When someone speaks or provides documents to media on the record, and there is no agreement of confidentiality, there is no reasonable expectation of privacy in respect to those communications, and they may ultimately be disclosed, whether in civil litigation or as a result of a search warrant by a policing authority,” Winkler says. “If confidentiality had been at stake and the court ruled the same way, then depending on the circumstances, I could see the media being more concerned.”

The case has its roots in articles published in 2014 by the Vice Media journalist, based largely on communications he had with a Calgary man who left the country for Turkey earlier that year and later appeared in ISIS propaganda videos.

As part of its investigation into allegations the man had participated in terrorist activity and made death threats, the RCMP obtained an ex parte production order for the journalist’s notes.

Vice’s application to quash the order was dismissed by an Ontario Superior Court judge, whose decision was in turn upheld by the province’s appeal court.

Although the nine justices were united in the result, they split 5-4, disagreeing on the extent of tinkering required to the existing test for issuing search warrants and production orders against journalists.

Writing for the majority, Supreme Court Justice Michael Moldaver dismissed the appeal, finding “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news.”

Moldaver endorsed the framework for granting such orders laid out in a landmark 1991 case, also decided by the Supreme Court, though he added that it should be refined, reorganizing the factors to be considered, and allowing for an assessment of the effect of prior partial publication on a case-by-case basis.

In addition, the majority decision modified the standard for reviews of ex parte orders, entitling media outlets to a de novo review if they can introduce information not heard by the authorizing judge.

Winkler says journalists should be more concerned about an upcoming case slated to be heard by the top court in the new year. That involves a Radio-Canada reporter appealing an order that she identify the sources for her story on corruption in Quebec.

“I think the issues in that decision will be much more illuminating and impactful,” he says.

Failed U.K. privacy breach action would fare better in Canada

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Canadian consumers have a better set of legal tools to hold companies responsible for privacy breaches than their U.K. counterparts, judging by a recent ruling involving an internet search engine, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

The CBC recently reported on the refusal of the High Court of England and Wales to certify a class action against the search engine giant over claims the company illegally accessed iPhone users’ internet history data.

Despite describing the company’s actions in bypassing privacy settings on smartphone users’ internet browsers as “wrongful, and a breach of duty” the British judge ruled the action could not proceed because the claimants had failed to prove any damages.

Winkler, principal and founder of Winkler Dispute Resolution, says members of the consumer coalition who brought the action may have had a better chance of success in Canadian courts.

“The situation in Ontario is much more favourable to plaintiffs under similar circumstances,” he says. “Here, there are avenues both in statute and the common law by which claimants can pursue remedies for privacy breaches.”

In fact, Winkler explains there are three main routes claimants could have taken in Canadian courts to hold search engines or other companies responsible for breaches, though he adds that nobody should expect a huge windfall.

“The damages aren’t considerable, so one has to think about whether they are worth pursuing,” Winkler says. “While there is some public interest in holding those responsible for breaches accountable, it’s possible that the only real winners are the lawyers.”

Class Action

“There is a growing body of class-action lawsuits in Canada for breach of privacy, with at least six settlements of such cases,” Winkler says.

Typically, he says the settlements approved by the courts provide for a nominal amount to individual class members for wasted time and inconvenience, plus a further capped pool of money to fund claimants who can prove actual damages as a result of the breach.

“On the one hand, it’s not an avenue that’s likely to generate much money, but it does provide a mechanism whereby the wrongdoer can be held to account in court for the breach of privacy, while plaintiffs receive at least some compensation,” Winkler says.

PIPEDA

When individuals complain to the Office of the Privacy Commissioner of Canada (IPC) about a potential breach of Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), the IPC will render a report on the incident.

Regardless of the IPC’s decision, Winkler says the law allows for complainants to seek damages related to the alleged privacy breach in Federal Court for “humiliation.”

“The court doesn’t require proof of actual damages to make an award,” he says. “It’s more in the nature of symbolic or moral damages, which are awarded in part for deterrence against the wrongdoer.”

Winkler says damages awarded under PIPEDA are typically in the range of $2,500 to $5,000 but have gone as high as $20,000 in one extreme case where the court found the company’s behaviour “reprehensible.”

Tort action

Ever since a landmark 2012 Court of Appeal decision, Ontarians have been able to sue under what is commonly known as a breach of privacy tort.

That decision, which recognized the existence of the tort of “intrusion upon seclusion” for the first time, concerned a bank employee who repeatedly accessed the account records of a colleague after becoming romantically involved with the woman’s former spouse.

“Damages in Ontario have gone as high as $20,000, and in exceptional circumstances, they could go much higher, such as where the conduct is egregious and relates to the disclosure of sexual content,” Winkler says.

Does PIPEDA protect social media personal data?

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Companies like Facebook and Google — which have come under intense criticism for their handling of personal information — need to enter into a new social contract with their users or risk having one imposed by governments, says Toronto lawyer and mediator Howard Winkler.

“It’s time for a change in the social contract that Google and Facebook have with their users. It shouldn’t necessarily have to be the subject of legislation,” says Winkler, principal and founder of Winkler Dispute Resolution.

“I think that Google, Facebook and others should recognize that there are limits users want to put on the use and sale of their data. They should contemplate what those limits are, and give people an opportunity to opt out of certain uses of their data,” he tells AdvocateDaily.com.

Winkler points to revisions to the European Union’s General Data Protection Regulations (GDPR) as an example of how governments are responding to the massive privacy breach of Facebook users’ data through its ties with consulting firm Cambridge Analytica — a company which announced in early May that it was shutting down, CBC reports.

The GDPR changes, effective as of May 25, will enhance how personal data is protected by businesses and the public sector in 28 countries, and will have a particular impact on social media companies, Wired reports.

“The focus of those changes is requiring Facebook and Google to provide users with greater clarity in terms of what’s being collected and how their data is being used,” Winkler says.

He says the EU provisions are similar to what’s contained in Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), which is enforced by the privacy commissioner and governs the collection, use and disclosure of personal information by private-sector organizations.

“I think PIPEDA, in terms of covering the use of personal data, is sufficient, if properly enforced. What’s unresolved is how the privacy commissioner is going to interpret the existing rules in the context of Facebook and Google,” Winkler says, noting that in March, the commissioner opened an investigation into a complaint against Facebook with respect to Cambridge Analytica.

“It seems pretty clear to me that the existing legislation, and the spirit of its regulations, requires this meaningful and informed consent. I don’t think that when you first subscribe to Facebook or sign into Google and you click ‘I Agree’ to the terms of use that that constitutes what the Act would require as a meaningful and informed consent. So my view is that the legislation is or should be sufficient to prevent certain uses and sale of personal information.”

On May 24, the privacy commissioner announced it had published “two important new guidance documents — on obtaining meaningful consent and on inappropriate data practices — to help organizations ensure they comply with their privacy obligations in the digital age.”

Google recently released its revised privacy policy, and “while it does provide some explanation of the collection and use of information, it does not in my view go far enough or contemplate any change in their business practices.

“When I look at the terms of use on both Google and Facebook, it seems to me that there is still insufficient disclosure of the commercial use to which they are using people’s personal information.”

The Facebook-Cambridge Analytica situation “is perhaps a catalyst for greater public understanding of how our information is being used and sold for commercial gain. And it’s started a useful dialogue that hopefully will result in people being able to continue to receive the services they want from Facebook and Google,” he says.

“At the same time, people should be able to place some limits on the use of their data to be more consistent with their expectations. I think that that likely is coming. But one has to recognize from Facebook and Google’s perspective, any kind of limitation on use and sale of data is going to affect their economic model, and so they’re going to be reluctant to change.”